Bradshaw v. Eufaula Police Department, et al. (INMATE 1)

Filing 4

ORDER directing that the motion for leave to proceed in forma pauperis filed by Victor Bradshaw (Doc. No. 2 ) be and is hereby DENIED; additionally it is the RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice for th e plaintiffs failure to pay the full filing fee upon the initiation of this case; further ORDERED that on or before October 22, 2013 the parties may file objections to the Recommendation. Signed by Honorable Judge Terry F. Moorer on 10/7/13. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

VICTOR BRADSHAW, GDC-327970,
Plaintiff,
v.

EUFAULA POLICE DEPT., et al.,
Defendants.

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) CIVIL ACTION NO. 2:13-CV-714-TMH
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[WO]
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ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
This civil action is before the court on a 42 U.S.C. § 1983 complaint filed by Victor
Bradshaw [“Bradshaw”], an inmate currently confined at the Wheeler Correctional Facility
in Alamo, Georgia, on September 25, 2013.1 In this complaint, Bradshaw challenges the
constitutionality of his extradition from Alabama to Georgia in June of 2010.
Upon initiation of this case, Bradshaw filed a motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915(a). Application to Proceed Without Prepayment of Fees Doc. No. 2. However, 28 U.S.C. § 1915(g) directs that a prisoner is not allowed to bring

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Although the Clerk of this Court stamped the complaint “received” on September 30, 2013, Bradshaw
verified execution of the complaint on September 25, 2013. The law is well settled that a pro se inmate’s complaint
is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272
(1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780
(11th Cir. 1993). “Absent evidence to the contrary in the form of prison logs or other records, [this court] must
assume that [the instant complaint] was delivered to prison authorities the day [Bradshaw] signed it...” Washington
v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers September 25,
2013 as the date of filing.

a civil action or proceed on appeal in forma pauperis if he “has, on 3 or more occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.”2
II. DISCUSSION
The records of the United States District Court for the Middle District of Georgia
establish that Bradshaw, while incarcerated or detained, has on at least three occasions had
civil actions or appeals dismissed pursuant to the provisions of 28 U.S.C. § 1915 as
frivolous, malicious, for failure to state a claim and/or for asserting claims against
defendants immune from suit. The actions on which this court relies in finding a § 1915(g)
violation by the plaintiff are: (1) Bradshaw v. Governor of Georgia, et al., Case No. 4:12CV-11 (CDL) (M.D. Ga. 2012); (2) Bradshaw v. Doe, Case No. 5:11-CV-362 (CAR)
(M.D. Ga. 2011); (3) Bradshaw v. Chattahoochee Judicial Circuit, Case No. 4:11-CV-121

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In Rivera v. Allin, 144 F.3d 719, 731, cert. denied, 524 U.S. 978, 119 S.Ct. 27 (1998), the Court
determined that the “three strikes” provision of 28 U.S.C. § 1915(g), which requires frequent filer prisoner indigents
to prepay the entire filing fee before federal courts may consider their cases and appeals, “does not violate the First
Amendment right to access the courts; the separation of judicial and legislative powers; the Fifth Amendment right to
due process of law; or the Fourteenth Amendment right to equal protection, as incorporated through the Fifth
Amendment.” In Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921 (2007), the Supreme Court abrogated Rivera but
only to the extent it compelled an inmate to plead exhaustion of remedies in his complaint as “failure to exhaust is an
affirmative defense under the PLRA ... and inmates are not required to specifically plead or demonstrate exhaustion
in their complaints.” 549 U.S. at 216, 127 S.Ct. at 921.

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(CDL) (M.D. Ga. 2011).3 As Bradshaw has “three strikes” related to prior federal civil
actions, he cannot proceed in forma pauperis unless he qualifies for the “imminent danger”
exception to § 1915(g).
In the instant complaint, Bradshaw alleges that the defendants violated his
constitutional rights with respect to his extradition from Alabama to Georgia in June of
2010. Bradshaw asserts that the mere fact of his incarceration, standing alone, renders him
in imminent danger of serious physical injury. Complaint - Doc. No. 1 at 3 (“I am currently
incarcerated in prison. I am currently at any time around inmates with serious offenses.
The prison is placed on lock down very often about incidents within the prison. It is not
ever known exactly what could or would happen, any place within the prison.”). This
purely speculative claim of possible future injury utterly and completely fails to
demonstrate that Bradshaw was, in fact, “under imminent danger of serious physical
injury” at the time he filed this cause of action as is required to meet the exception to
application of 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.
1999) (A prisoner who has filed three or more frivolous lawsuits and seeks to proceed in
forma pauperis must allege a present “imminent danger of serious physical injury” to

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The United States District Court for the Middle District of Georgia relied on these same three cases in
dismissing a similar complaint filed by Bradshaw as violative of 28 U.S.C. § 1915(g). Bradshaw v. Georgia Dept. of
Corrections, et al., Case No. 4:13-CV-73 (CDL) (M.D. Ga. April 4, 2013). The Georgia court further noted that
“[i]n each of the above cases, [Bradshaw] challenged his arrest or extradition from Alabama. As there exists two
independent reasons for dismissal of the instant lawsuit, the Court need not consider whether res judicata or
collateral estoppel bars this lawsuit or Plaintiff's claims.” Id. - Order of Dismissal at 2 n.2.

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circumvent application of the “three strikes” provision of 28 U.S.C. § 1915(g).). Based
on the foregoing, the court concludes that Bradshaw’s motion for leave to proceed in forma
pauperis is due to be denied and that this case is subject to summary dismissal without
prejudice as Bradshaw failed to pay the requisite filing fee upon initiation of this cause of
action. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (emphasis in original)
(“[T]he proper procedure is for the district court to dismiss the complaint without prejudice
when it denies the prisoner leave to proceed in forma pauperis pursuant to the provisions
of § 1915(g)” because the prisoner “must pay the filing fee at the time he initiates the
suit.”).
In addition, “[e]ven if [Bradshaw] had not incurred three strikes prior to filing this
lawsuit, his complaint would be subject to dismissal [as untimely filed]. The length of the
statute of limitations for filing a section 1983 action is controlled by state law. Wilson v.
Garcia, 471 U.S. 261, 275-76 (1985).” Bradshaw v. Georgia Dept. of Corrections, et al.,
Case No. 4:13-CV-73 (CDL) (M.D. April 4, 2013) - Order of Dismissal at 3. In Alabama,
the statute of limitations for a section 1983 action is two years. McNair v. Allen, 515 F.3d
1168, 1173 (11th Cir. 2008) (“All constitutional claims brought under § 1983 are tort
actions, subject to the statute of limitations governing personal injury actions in the state
where the § 1983 action has been brought. Wilson v. Garcia, 471 U.S. 261, 275-76, 105
S.Ct. 1938, 1946-47, 85 L.Ed.2d 254 (1985). [The plaintiff’s] claim was brought in

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Alabama where the governing limitations period is two years. Ala. Code § 6-2-38; Jones
v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en banc). Therefore, in order
to have his claim heard, [the plaintiff is] required to bring it within two years from the date
the limitations period began to run.”). The tolling provision of Ala. Code § 6-2-8(a) is
unavailing.4 Because Bradshaw initiated this cause of action more than three years after
his extradition, the claims raised herein are barred by the applicable two-year period of
limitation.5
III. CONCLUSION
Accordingly, it is
ORDERED that the motion for leave to proceed in forma pauperis filed by Victor
Bradshaw (Doc. No. 2) be and is hereby DENIED.

Additionally, it is the

RECOMMENDATION of the Magistrate Judge that this case be dismissed without
prejudice for the plaintiff’s failure to pay the full filing fee upon the initiation of this case.
It is further
ORDERED that on or before October 22, 2013 the parties may file objections to the
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This section allows tolling of the limitation period for an individual who “is, at the time the right accrues ...
insane....” Ala. Code § 6-2-8(a). The complaint demonstrates that Bradshaw was not legally insane at the time of the
challenged events or at any time thereafter so as to warrant tolling under Ala. Code § 6-2-8(a).
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Unquestionably, the statute of limitations is usually a matter which may be raised as an affirmative defense.
The court notes, however, that in an action proceeding under section 1983, it may consider, sua sponte, affirmative
defenses that are apparent from the face of the complaint. Clark v. Georgia Pardons and Parole Board, 915 F.2d
636, 640 n.2 (11th Cir. 1990); see also Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990). “[I]f the district court sees that an
affirmative defense would defeat the action, a section 1915[(e)(2)(B)(i)] dismissal is allowed.” Clark, 915 F.2d at
640. “The expiration of the statute of limitations is an affirmative defense the existence of which warrants dismissal
as frivolous. See Franklin [v. State of Oregon], 563 F.Supp. [1310] at 1330, 1332.” Id. at n.2.

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Recommendation. Any objections filed must specifically identify the findings in the
Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive
or general objections will not be considered by the District Court. The parties are advised
that this Recommendation is not a final order of the court and, therefore, it is not
appealable.
Failure to file written objections to the proposed findings and advisements in the
Magistrate Judge’s Recommendation shall bar the party from a de novo determination by
the District Court of issues covered in the Recommendation and shall bar the party from
attacking on appeal factual findings in the Recommendation accepted or adopted by the
District Court except upon grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d
33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981,
en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981.
Done this 7th day of October, 2013.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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